England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES

		CO/11605/2013 Cardiff Civil Justice Centre Park Street Cardiff CF10 1ET
		4th March 2014

Mr Justice Hickinbottom:

1. On 9 July 2013 the Defendant planning authority ("the Council") granted the Interested Party ("Princes Gate") planning permission for the erection of two wind turbines on land at New House Farm, Ludchurch, Narberth, Pembrokeshire ("the Site"). New House Farm is an organic dairy farm, but is also the home of a spring water bottling plant, which has recently installed a machine to blow its own bottles that requires substantial electricity for its operation. Princes Gate applied for permission to construct its own wind turbines with a view to reducing its energy costs, and becoming operationally carbon neutral. The proposed turbines are "medium scale", with a hub height of about 60m, a rotor diameter of 53m and a maximum tip height of 86.5m; and the development includes various ancillary works such as an access track, transformers and underground cabling.
2. The Claimant lives near the Site, and is part owner of a nearby ancient monument, the Castell Meherin Iron Age fort.

The History of the Application

3. Princes Gate made the application for planning permission on 12 October 2011.
4. There were a number of objectors, including the Claimant. The Site is near several ancient monuments - the Castell Meherin scheduled monument is 100m away; the Parc-y-Gerrig standing stone, 150m; the Newhouse group of Bronze Age barrows, 600m; and the Blaengwaith-Noah camp, 800m - and the objectors included the Council's own archaeological advisers, the Dyfed Archaeological Trust.
5. On 18 November 2011, in response to a request, the Council issued a screening opinion, to the effect that the development did not require an environmental impact assessment ("EIA").
6. Planning permission was granted by the Council's Planning and Rights of Way Committee ("the Committee") on 17 September 2012. However, the Claimant issued judicial review proceedings (Claim No CO/129491/2012) challenging the decision on several bases, including the ground that the officer's report (and, in its turn, the Committee who effectively adopted the report) had failed properly to interpret Policy 84 of the then-current Joint Unitary Development Plan for Pembrokeshire 2000-2016, and had thus approached a material issue incorrectly. The report said that there was compliance with that policy because, although it concluded that there was medium adverse impact on schedule monuments, this was not significant. However, Policy 84 provided that, "Development which adversely affects important archaeological remains and/or their settings will not normally be permitted", i.e. it required any adverse impact on historical sites to be treated as significant. The Council accepted that the Committee had erred in law, and subjected to judgment on that basis. The September 2012 planning decision was quashed.
7. Further screening opinions were issued by the Council on 18 January 2013 (incorrectly dated 2012) and 13 February 2013. Each concluded that the development did not require an EIA.
8. The Committee reconsidered planning permission at their meeting on 21 May 2013, and determined to allow the application, that permission being issued on 9 July 2013. It is that grant of permission that is now challenged.

The Grounds

9. Mr Richard Harwood QC for the claimant relies on two grounds, as follows:

Ground 1: The Committee misunderstood and misapplied the relevant local plan.

Ground 2: The third (and effective) EIA screening opinion was inadequate and unlawful in three respects. First, it failed to take into account a relevant criterion, namely the presence of landscapes of historical, cultural and archaeological significance. Second, in respect of various impacts, the EIA screening checklist for the opinion failed properly to apply the statutory test of "likely significant effect". Third, the opinion is irrational and its reasoning unintelligible (and, hence, inadequate), because the screening checklist contradicts the screening opinion itself.

10. On 22 October 2013, His Honour Judge Jarman QC granted permission to proceed on Ground 1 and the first limb of Ground 2. The other two limbs of Ground 2 - which appear to me to be discrete grounds - appeared first in the Claimant's Reply. However, no point is taken by the Mr Reuben Taylor for the Council as to lateness. Therefore, I propose to deal with the merits of these grounds in turn. Other grounds previously relied upon by the Claimant are no longer pursued.

Ground 1: The Local Plan

11. As his first ground, Mr Harwood submitted that the officer's report upon which the Committee based their decision to grant planning permission was flawed, because it misunderstood and misapplied relevant provisions of the local development plan.
12. The legal propositions relevant to this ground are well-established.

(i) Section 70(2) of the Town and Country Planning Act 1990 provides that, in dealing with an application for planning permission, a planning authority must have regard to the provisions of "the development plan" (defined by section 38 of the Planning and Compulsory Purchase Act 2004 to include adopted local plans), as well as "any other material consideration". However, the development plan is not just a material consideration like any other. By section 38(6) of the 2004 Act:

"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."

Therefore, section 38(6) raises a presumption that planning decisions will be taken in accordance with the development plan; but that presumption is rebuttable by other material considerations.

(ii) Whilst a planning decision-maker must take into account all material considerations, the weight to be given to such considerations is exclusively a matter for planning judgment for that decision-maker, who is entitled to give a material consideration whatever weight, if any, he considers appropriate, subject only to his decisions not being irrational in the sense of Wednesbury unreasonable (Tesco Stores Ltd v Secretary of State for Environment [1995] 1 WLR 759 at page 780F-G per Lord Hoffmann; and Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 at [19] per Lord Reed). The courts consequently leave such decisions to be made by the appointed decision-makers - who are democratically elected bodies or persons accountable to such bodies - on the basis of guidance promulgated by the Secretary of State, the Welsh Ministers and the local authorities themselves (see, e.g. R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23 at [60] per Lord Nolan [69] and [129] per Lord Hoffmann and [159] per Lord Clyde); and R (Morge) v Hampshire County Council [2011] UKSC 2 at 366 per Baroness Hale).

(iii) A decision-maker must interpret policy properly, the true interpretation of policy being a matter of law for the court (Tesco v Dundee at [17]-[19] per Lord Reed)). Where a decision-maker has misunderstood or misapplied a plan or policy, that may found a challenge to his decisions, if it is material, i.e. if his decision would or might have been different if he had properly understood and applied the guidance.

(iv) However, development plans set out broad policy guidelines, often framed in language that requires the exercise of judgment when applied to any particular set of facts. The exercise of judgment inherent in such policy is, like any matter of planning judgment, for the relevant planning authority; and can only be challenged on the ground that it is irrational or perverse.

(v) Whether a proposal is "in accordance with the plan" for the purposes of section 38(6) will depend on all the circumstances of the particular case, which itself requires an exercise of judgment within the realm of the planning authority (R (Cummings) v Camden London Borough Council [2001] EWHC 1116 (Admin) at [164]-[165] per Ouseley J). Almost inevitably, any planning application will engage a number of policy strands, which may well not pull in the same direction, or indeed may well clearly pull in very different directions. Those circumstances were helpfully considered recently by Lewison LJ in R (TW Logistics) v Tendring District Council [2013] EWCA Civ 9 at [18]. After considering the relevant passage from Lord Reed's judgment in Tesco v Dundee, he said that it had two consequences for the case before him, which are relevant also to this case:

"First, we must not adopt a strained interpretation of the Local Plan in order to produce complete harmony between its constituent parts. Second, we must be wary of a suggested objective interpretation of one part of the Local Plan as having precedence over another. In a case in which different parts of the Local Plan point in different directions, it is for the planning authority to decide which policy should be given greater weight in relation to a particular decision. This, in my judgment, is established by the decision of Ouseley J in [Cummins]…. In that case Ouseley J said (at [164]):

'It may be necessary for a Council in a case where policies pull in different directions to decide which is the dominant policy: whether one policy compared to another is directly as opposed to tangentially relevant, or should be seen as the one to which the greater weight is required to be given.'"

(vi) Therefore, where there are discrete strands of planning policy within a single Local Plan that pull in different directions in a particular case, the planning authority must balance them, giving each the weight it considers appropriate and thus determining which policy, if any, is dominant; and decide whether, looking at the Local Plan as a whole, the proposal is or is not in accordance with it. However, even if it decides that the development is not in accordance with the plan, the authority may still decide that other material considerations outweigh that fact. In relation to these issues, no particular process is mandated as appropriate: so long as the decision-makers (a) identity and engage with the relevant policies in the development plan, properly understood and considered as a whole and (b) pay proper regard to the statutory priority given to the development plan (City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447 especially at page 1459H-1460D, as recently considered by me in R (Hampton Bishop Parish Council) v Herefordshire Council [2013] EWHC 3947 (Admin) at [123]- 130]).

(vii) Each local planning authority delegates its planning functions to a planning committee, which acts on the basis of information provided by case officers in the form of a report. Such a report usually also includes a recommendation as to how the application should be dealt with. An officer's report for a planning committee is not to be construed with the same exegesis as a statute. It is written by planning officers for members of planning committees, and therefore designed to be considered by a knowledgeable readership, aware of the planning policy context and of course the local context. The questions to be asked are whether the author properly identified the important planning issues to be considered, and whether overall he fairly identified the material matters bearing upon those issues, to enable the decision makers in the committee to weigh the competing public and private interests involved, and come to an appropriately informed decision (R (Zurich Assurance Ltd trading as Threadneedle Property Investments) v North Lincolnshire Council [2012] EWHC 3708 (Admin) at [15], and the cases referred to therein). With regard to such reports, in the absence of contrary evidence, where a recommendation is adopted, it is a reasonable inference that members of the planning committee follow the reasoning of the report.

13. By the time of the fresh decision in this case, the Unitary Development Plan that was the focus of the earlier decision had been replaced by the Council's Local Development Plan (up to 2021) ("the LDP"), which was adopted by the Council on 28 February 2013; and the application stood to be determined in accordance with that new local policy.
14. The express objective of the LDP is to contribute to the achievement of "sustainable development", by "[providing] the policy context for directing development to appropriate locations, conserving the natural, built and historic environment and providing a basis for rational and consistent decision-making on planning applications" (paragraphs 1.1 and 1.2); and its express "overarching aim" is to "ensure that Sustainable Development is achieved" (paragraph 5.6). Part 4 of the Chapter 3 ("Key Trends and Issues") identifies the following, among others, as key planning issues: "Efficient use of resources", "Meeting national targets for renewable energy" and "Loss of and threats to heritage assets", the heritage assets of the county being "an important part of what makes the... area distinctive" (paragraph 3.33). Chapter 4 ("Vision and Objectives") identifies as strategic objectives "Mitigating and responding to the challenge of climate change" (Objective A), and "Protecting and enhancing the natural and built environment" (Objective J), "To conserve and enhance the historic environment" being an identified sub-objective. Chapter 5 "sets out the spatial strategy and the Strategic Policies guiding future development and land use ..." (paragraph 1.10). Chapter 6 "sets out the General Policies that will be used to guide development and assess future planning applications" (paragraph 1.11).
15. Policy SP1 particularly concerns "Sustainable Development", which is its cross-heading. Under section 79 of the Government of Wales Act 2006, Welsh Ministers have a statutory duty to make a scheme setting out how they propose, in exercise of their functions, to promote sustainable development. The current scheme is "One Wales: One Planet: The Sustainable Development Scheme of the Welsh Assembly Government" (May 2009). That defines "sustainable development" as follows:

"In Wales, sustainable development means enhancing the economic, social and environmental wellbeing of people and communities, achieving a better quality of life for our own and future generations:

In ways which promote social justice and equality of opportunity; and

In ways which enhance the natural and cultural environment and respect its limits - using only our fair share of the earth's resources and sustaining our cultural legacy.

Sustainable development is the process by which we reach the goal of sustainability."

"The goal of sustainability" is defined in a policy document adopted by the United Kingdom Government and the devolved administrations in Scotland, Northern Ireland and Wales, "One Future: Different Paths", launched in March 2005, as "to enable all people throughout the world to satisfy their basic needs and enjoy a better quality of life without comprising the quality of life of future generations."

16. That sets the context of policy SP1, which provides as follows:

"All development proposals must demonstrate how positive economic, social and environmental impacts will be achieved and adverse impacts minimised."

17. The notes go on to say:

"All key issues apply.

The Strategic Policy will contribute towards achieving objectives A, B, C, D and J.

The following General Policies provided more detailed guidance on this Strategic Policy: GN1-GN4, GN33-GN38."

18. The policy is explained in paragraphs 5.6 and 5.7:

"5.6 The planning system provides for a presumption in favour of sustainable development and national planning policy provides a definition of sustainable development in Wales. The overarching aim of the [LDP] is to ensure that Sustainable Development is achieved. This means ensuring that the types of development that take place are appropriate for their location and built and designed in such a way as to achieve positive economic, social and environmental impacts. Detailed policies such as the General Policies GN1 to GN4 and GN33 to GN38 of the [LDP] will be critical in ensuring that this Strategic Policy is met. These policies focus on ensuring that proposals are appropriate for different locations, that the design achieves safe, attractive and inclusive environments which are sustainable and optimise energy use and efficiency and incorporate energy technologies where feasible, whilst addressing landscaping and infrastructure requirements of any development.

5.7 The delivery of zero-carbon development and wider use of low-carbon and no-carbon technology in new building is being driven by Government targets and associated changes to the Building Regulations... This policy is complementary to these initiatives, which in combination will help to deliver new development that is sustainable."

It is clear from this that (i) "sustainability" in this context requires, and is dependent upon, an assessment of whether, on the basis of all the material factors, a proposed development is appropriate and acceptable in planning terms, i.e. that overall it achieves positive economic, social and environmental impact; and (ii) a major driver towards the goal of sustainability is renewable energy.

19. Policy SP16 ("The Countryside") states that:

"The essential requirements of people who live and work in the countryside will be met whilst protecting the landscape and natural and built environment of Pembrokeshire and adjoining areas...".

20. Paragraph 5.86 explains:

"There are many challenges in maintaining a strong natural and historic environment whilst ensuring that other key objectives in the [LDP] such as providing housing or building on the County's strategic location for energy and port related development are met. General Policies on development will ensure that these challenges are managed successfully."

21. The relevant General Policies are GN1, GN4 and GN38.
22. Policy GN1 ("General Development Policy") provides, so far as relevant to this claim:

"Development will be permitted where the following criteria are met:

...

2. It would not result in significant detrimental impact on local amenity in terms of visual impact, loss of light or privacy, odours, smoke, fumes, dust, air quality, or an increase in noise or vibration levels;

3. It would not adversely affect landscape character quality or diversity, including the special qualities of the Pembrokeshire Coast National Park and neighbourhood authorities;..."

It is noteworthy that paragraph 2 requires an absence of a significant adverse impact in respect of the identified matters, and paragraph 3 only any adverse impact in respect of the further identified matters. The purpose of the policy is clearly set out in paragraph 6.1:

"The purpose of this policy is to provide a framework for evaluation of potential development impacts. This will be used in conjunction with other plan policies to determine whether the proposed development is appropriate."

23. Policy GN38 addresses "Protection and Enhancement of the Historic Environment":

"Development that affects sites and landscapes of architectural and/or historical merit or archaeological importance, or their setting, will only be permitted where it can be demonstrated that it would protect or enhance their character and integrity."

24. Paragraph 6.154 builds on that policy:

"Pembrokeshire has a rich and varied environment made up of architectural, historic and archaeological features that are integral to its quality and distinctiveness. The historic environment enhances quality of life, forging culture identity and community cohesion and is a major asset to Pembrokeshire's visitor economy. The policy builds on national policy, to draw attention to the scale and significance of these assets within Pembrokeshire and to protect, preserve and enhance these features and designations. It ensures that Pembrokeshire's historic environment including formally designated sites together with buildings and the features of local importance and interest, and their setting, are appropriately protected and enhanced. Development that may detrimentally affect the character or integrity of such areas will not be permitted."

25. Policy GN4, chiming with SP1 and paragraph 5.7 which I have already quoted, covers "Resource Efficiency and Renewable and Low-carbon Energy Proposals":

"Development proposals should seek to minimise resource demand, improve resource efficiency and seek power generated from renewable resources, where appropriate. They will be expected to be well designed in terms offence apology use.

Developments which enable the supply of renewable energy through environmentally acceptable solutions will be supported."

26. After referring to the United Kingdom targets for energy from renewable resources under the EU Renewable Energy Directive - 15% by 2020 - the LDP goes on to say:

"6.28 Pembrokeshire has significant potential to provide further energy from all renewable resources, building on its existing role as an energy centre. However, it lies outside the Strategic Search Areas for wind energy. This policy aims to encourage further use of renewables to produce energy, which will help to meet Government targets for generating power from renewable resources.

6.29 renewable energy technologies... include... onshore wind energy.

...

6.31 Landscape impact, alone and in combination, will be a material consideration in the evaluation of renewable energy proposals, with LANDMAP providing a valuable landscape analysis tool."

27. At their meeting on 21 May 2013, the Committee had the benefit of a report from a planning officer, namely the Council's Director of Development. That report identified the main issues raised by the application as including the principle of development (Policies SP1, SP16, GN1 and GN4), and "Effect upon matters of historic interest" (Policy GN38)". In paragraph 6.10, it concluded that "any adverse effect on the landscape character, quality or diversity would be minimal and environmentally acceptable". Therefore, it said, although it would be contrary to paragraph 3 of Policy GN1, it would be in accordance with Policy GN4. In paragraphs 6.11-6.25 of the report, the officer addressed, with patent care, each of the relevant historic sites, including concerns raised by the Cadw and the adverse recommendations by the Council's own archaeological consultants, the Dyfed Archaeological Trust. However, after noting that recommendation, the report said (at paragraph 6.24):

"However, given the relatively slender nature of the proposed turbines, which allow for a large degree of visual permeability, it is considered that the development would not be significantly detrimental to the area's historic environment in terms of visual impact. Furthermore the limited lifespan of any permission that may be granted (25 years) and the reversibility of the development, in terms of the removal of the turbines at the end of the expected life span, would limit any harm that would occur."

28. Nevertheless, the report concluded that the proposal would have a medium impact on scheduled ancient monuments, and would thus be in conflict with policy GN38.
29. The report as a whole concluded:

"6.46 It is considered that the location of the proposed development can satisfactorily accommodate wind turbines without any significant adverse impact on the landscape, the historic environment, the living conditions of local residents or on highway safety. Whilst there would be minor adverse impact on landscape character and quality, contrary to the requirements of criterion 3 of Policy GN1, the impact of the proposal would be environmentally acceptable as required by policy GN4. The limited adverse effects which have been identified - including the moderate impact of archaeological interests and the consequential conflict with Policy GN38 are outweighed by the scheme's contribution to renewable energy prediction.

6.47 Having regard to the LDP, national planning policy and all other material planning considerations it is considered that the proposed development is acceptable."

30. Mr Harwood submitted that, having found that the development proposal was contrary to Policies GN1 (landscape) and GN38 (historic environment), the Committee erred in concluding that the development was "environmentally acceptable" and thus in compliance with Policies GN4 (renewable energy) and SP1 (sustainable development). He submitted that a development which contravenes any environmental policy within Policies GN1 to GN4 and GN33 to GN38 cannot, as a matter of law, be "environmentally acceptable", and hence cannot, as a matter of law, be in compliance with Policy GN4 or Policy SP1 or, indeed, with the LDP. Thus, if a proposed development has any adverse effect at all on the landscape character - or landscape of historical, cultural or archaeological importance, including setting - that development cannot be in accordance with the LDP. Given that the LDP is drafted on the basis that any such adverse effects are a policy trump card, although other material considerations can overcome the presumption that development that is not in accordance with the plan will not be allowed, Mr Harwood submitted that it is unlikely that in practice they would do so, in this context,. The firm policy of the LDP is, he said, that a development that has any adverse impact on the landscape character or landscape of historical importance will not be allowed in Pembrokeshire; and it is a policy that is unlikely to be overridden by any other material considerations including benefits that might be shown to accrue from the proposed project, no matter how small the adverse impact of the landscape or how great the benefits of the other considerations even where those might be environmental benefits.
31. However, I am unpersuaded by that submission.
32. As Mr Taylor forcefully submitted, the overarching aim of the LDP is to ensure sustainable development is achieved, Policy GN1 expressly providing a framework for the evaluation of development impacts, good and bad. It would be remarkable if that aim was subverted by a particular consideration being, as a matter of policy, paramount or trump.
33. However, that is not the nature of the LDP. In respect of this application for planning permission, there was a clear policy conflict between the contribution that would be made by the development to renewable sources of power on the one hand, and the adverse impact it would have on the landscape character or landscape of historical merit and archaeological importance, and its setting, deriving from the scheduled monuments to which I have referred. Both of those factors are "environmental" in nature. Reading the officer's report fairly and as a whole, it is clear that the author had both of those considerations well in mind. As I have indicated, he set out, in some detail, the sites affected, and came to a judgment as to the degree of adverse impact the development would have on them. On the other hand, he also set out the Welsh Government's commitment to more sustainable forms of energy, and the fact that this development would make a contribution to increased use of renewable sources of power (paragraph 6.41). It noted that, as the electricity generated by the turbines would offset the energy used by Princes Gate in its water bottling operations, that would result in "a positive environmental effect" (paragraph 64). The report's conclusion - that the adverse effects on the landscape (including the moderate impact on the archaeological sites, noted to be contrary to policy GN38) - is set out in paragraph 6.46 of the report (quoted at paragraph 29 above).
34. Therefore, in short, the report found that the proposed development conflicted with criterion 3 of Policy GN1 (i.e. there would be an adverse impact on the landscape character, quality and diversity) (paragraph 6.10); and Policy GN38 (i.e. it would not protect the relevant archaeological and historic sites and landscapes) (paragraph 6.23 and 6.25). However, it accorded with policies GN4 and SP1, because that adverse impact was outweighed by the environmental benefits the development would bring, particularly the contribution to renewable energy resources: the development was consequently "environmental acceptable", and acceptable overall such that the report recommend acceptance of the proposal.
35. The submission made by Mr Harwood, that a proposal which is in breach of any of the GN policies cannot as a matter of law comply with Policy SP1, is unsustainable. Policy SP1 is concerned with "sustainable development". It in fact requires only that proposals show how positive impacts will be achieved and negative impacts minimised, so that an informed decision on sustainability can be made. But, in any event, a development does not become "not sustainable" simply because, in one aspect, it has an adverse economic, social or environmental impact; or because it is contrary to one of the GN policies. As I have indicated, whether a development is sustainable requires an assessment of whether overall the development achieves a positive economic, social and environmental impact; i.e. whether, on the basis of all the material factors, the proposed development is appropriate and acceptable in planning terms. Nothing in the LDP entrenches landscape character in the way in which Mr Harwood suggests. Indeed, as I have indicated, such entrenchment would be contrary to the overarching aim of the plan.
36. Policy GN4, as a matter of policy, requires development which enables the supply of renewable energy through environmentally acceptable solutions to be supported. Again, that clearly requires an exercise of judgment as to whether, on the basis of all material considerations given the weight the planning authority considers appropriate, a proposed development is acceptable in overall terms, from an environmental point of view. It does not, and cannot arguably, exclude a development because, in a single aspect, it has some adverse environmental impact. In this case, with other material considerations, the author of the report had to balance the adverse environmental impact of the proposed development as a result of the proximity of the scheduled ancient monuments, against the positive environmental impact of the contribution to renewable energy resources. That balancing exercise he conducted. He concluded that the adverse impact of the former was outweighed by the latter; in other words, he concluded that, overall, this development was environmentally beneficial. That was a planning judgment he was, clearly, entitled to make.
37. Mr Harwood accepted that, where there were competing strands of policy within a development plan, it was open to a planning decision-maker to give weight to those discrete policies and determine which, if any, of them should be dominant in a particular case. On the basis of his submission - that this development was contrary to Policies GN1 and GN38, and SP1 and GN4 - there was nothing in the proposal that could have led any decision-maker properly to conclude that this proposal was in accordance with the LDP. However, within the four corners of the LDP, the decision-maker was bound to consider and weigh considerations which, as strands of policy, competed; and, in my judgment, it was quite open to the officer's report (and the Committee in following the report) to conclude that, although in conflict with Policies GN1 and GN38, the proposed development was in accordance with the LDP because it was within Policies SP1 and GN4.
38. For those reasons, Ground 1 fails.

Ground 2: EIA

Introduction

39. European Directive 2011/92/EU, implemented in Wales by the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (SI 1999 No 293, "the 1999 Regulations")^[1], is designed to ensure that developments which may have a significant effect on the wider environment ("EIA developments") are subject to enhanced consultation and assessment of that effect. Some proposed developments, by their nature, attract those enhancements in any event ("Schedule 1 developments"). Others may attract those enhancements because they are "likely to have significant effects on the environment by virtue of factors such as their nature, size, or location" (regulation 2(1)) ("Scheduled 2 developments"). That necessitates an initial assessment of whether particular Schedule 2 development is likely to have such effects. Where it appears to a planning authority that it has an application for Schedule 2 development for determination, then it must adopt a "screening opinion", i.e. a "written statement of the opinion of the relevant planning authority as to whether development is EIA development" (regulations 2(1), 5 and 7). If it concludes that it is likely to have such effects, then it is required to have an EIA: if it concludes that it is not, then there is no additional requirement.
40. By regulation 4(5), where a local planning authority has to decide whether particular Schedule 2 development is an EIA development, it is required to take into account the selection criteria set out in Schedule 3. Paragraph 2 of the Schedule 3, headed "Location of development", provides, so far as relevant to this claim:

"The environmental sensitivity of geographical areas likely to be affected by development must be considered, having regard, in particular, to -

...

(c) the absorption capacity of the natural environment, paying attention to the following areas - ...

(viii) landscapes of historical, cultural or archaeological significance."

41. Those regulations are supplemented by Welsh Office Circular 11/99, which indicates that, in the Secretary of State's view, one type of case where, in general, an EIA would be needed for Schedule 2 development is for development "with unusually complex and potentially hazardous environment effects" (paragraph 33); although an EIA is said to be more likely for a wind farm where it is a commercial development of five turbines or more (Annex A, paragraph A15). The Circular stresses that environmental sensitivity may lower the threshold (Annex A, Introduction).
42. Although the Claimant claims that all three screening opinions have some common faults, the Council rely on the third screening opinion, dated 13 February 2013, and it is upon that I will focus.
43. There are three sub-grounds.

EIA: Failure to Consider Relevant Consideration

44. The LANDMAP assessment indicted that the Site is of "high" historic and cultural significance. Further, in the first officer's report (prepared for the first, now quashed, planning decision), the officer concluded (at paragraph 3.8):

"It can therefore be concluded from the above that, whilst there are high elements of importance in the vicinity of the application site, in terms of the historic and cultural landscape, the general area is characterised by a landscape of moderate importance."

45. Mr Harwood accepts that the screening checklist and opinion properly identify the schedule monuments that are close to the Site. Paragraph 2 of the opinion reads:

"The site of approximate 2km from the boundary of Pembrokeshire National Park. There are a number of Scheduled Ancient Monuments within the vicinity of the Site, the closest being approx 100m to the north. There are also Listed Buildings in the area (Tall Trees approx 600m to the west and St Elidyr's Church approx 1 km to the south west). Despite the existence of those environmentally sensitive sites, it is considered that the nature and scale of the proposed turbine would not cause significant environmental impacts sufficient to trigger its categorisation as an EIA development."

Mr Harwood accepts that that might adequately deal with the setting of the monuments; but, he submits, it fails to consider at all the effects of the historical, cultural and archaeological landscape.

46. In my view, that is too fine a point. Screening opinions drafted by planning officers, like officers' reports, cannot be read too scrupulously; they too are written by officers and are designed for a knowledgeable readership, and must be read accordingly (R (Anderson) v York City Council [2005] EWHC 1531 at [34]-[35]). The correct approach was emphasised recently in R (Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157 at [20]. Reflecting similar comments by Carnwath LJ (as he then was) in R (Jones v Mansfield District Council [2003] EWCA Civ 1408 at [59], Moore-Bick LJ said this:

"... I think it is important to bear in mind the nature of what is involved in giving a screening opinion. It is not intended to involve a detailed assessment of factors relevant to the grant of planning permission; that comes later and will ordinarily include an assessment of environmental factors, among others. Nor does it involve a full assessment of any identifiable environmental effects. It involves only a decision, almost inevitably on the basis of less than complete information, whether an EIA needs to be undertaken at all. I think it is important, therefore, that the court should not impose too high a burden on planning authorities in relation to what is no more than a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment, hence the term 'screening opinion"'.

47. In this case, I am satisfied that, in making his screening opinion decision, the officer on behalf of the Council did take into account the historic and archaeological landscape effects required to be taken into account by the 1999 Regulations. Whilst parts of the paragraph 3 of the opinion do focus on individual monuments, the conclusion is broad, namely that the nature and the scale of the proposed turbine would not cause significant environmental impact sufficient to trigger its categorisation as an EIA development. The officer had before him the LANDMAP assessment, and the earlier officer's report to Committee which identified the historic and cultural landscape as being of high importance. Mr Harwood submitted that there was nothing in the screening opinion, or indeed, checklist, that evidenced the different officer taking those documents into account. but there is no reason to suppose that that officer, in considering matters for the third screening opinion, did not have all of this in mind; and the conclusion to which I have referred is clearly wide enough to cover both settings and landscape character issues.
48. For those reasons, this first limb fails.

EIA: "Likely Significant Effect" Test

49. Moving to the section sub-ground, a planning authority which has an obligation under the Directive and the 1999 Regulations to determine whether Schedule 2 development is "likely to have significant effects on the environment ..." (and consequently an EIA development requiring the enhanced consultation and assessment procedures that are thus engaged) cannot avoid that obligation by saying that environmental information will be sufficiently available without requiring a formal environmental statement; because the very purpose of a screening opinion is to determine whether the more rigorous consultation and assessment required by the Regulations is in fact required (R (Lebus) v South Cambridgeshire District Council [2002] EWHC 2009 (Admin) at [10]-[13] per Sullivan J (as he then was)).
50. Mr Harwood submitted that the Council erred in producing a screening opinion which identified potential environmental impacts, but failed to consider their significance in terms of the 1999 Regulations. The screening checklist, which accompanied the third screening opinion, identified potential adverse impacts, but then merely said that they would in due course be considered in the Landscape and Visual Impact Assessment ("LVIA") without reaching any conclusion as to their significance in EIA terms. Mr Harwood referred specifically to answers 10, 15, 18, 21, A3 and A4 of the checklist. As a result, he submitted, the Council failed in its obligation to determine, through the screening opinion, whether the proposed development was likely to have significant effects on the environment.
51. However, I do not consider that submission to be good. The checklist is no doubt a useful tool which sets out information that informs the screening decision, but it is not the screening decision itself. That is confirmed by Mr Martin Allen, who is a Senior Planning Officer with the Council, who in fact prepared the screening checklist in this case, at paragraph 13 of his statement dated 19 February 2014. Although the opinion is signed by the Council's Head of Planning, Mr Allen also appears to have made the substantive screening decision. He explains in his statement (at paragraph 22):

"I considered that I had sufficient information to be able to screen the proposed development before me. The reference to the potential for an LVIA to be provided was simply an acknowledgement that further information would be provided in order to determine the application for planning permission."

52. So (i) Mr Allen confirms that he had sufficient information to determine - negatively - the question required of a screening opinion, i.e. whether the proposed development was likely to have significant effects on the environment; (ii) reminding us that, even absent an EIA, environmental factors are a material consideration for the planning authority to consider in making a decision on a planning application, he inserted in the checklist answers references to further information that might derive from an LVIA in due course which might assist in that exercise; and (iii) no criticism can be leveled at Mr Allen or the Council for not providing this evidence earlier, because it responds to a ground that was not run until the reply was served.
53. Irrespective of that evidence, on the face of the screening opinion and the checklist alone, this ground would, in my view, have faced substantial problems. The checklist provides information to the relevant decision-maker, and there are questions about (e.g.) the area and population that might be affected (questions A4 and A6). However, the checklist does not seek to assess the impact of the development: that that is the task of the opinion, which in this case it performs. This case is very different from Lebus.
54. I am not convinced that there is any ambiguity; but, in any event, any ambivalence has thus been resolved by Mr Allen's statement. That does not fall foul of the principle illustrated by R (Lanner Parish Council) v Cornwall Council [2013] EWCA Civ 1290, that an authority cannot seek to adduce ex post facto evidence which directly contradicts its own reports of what it decided and how its decisions were reached (see [64] per Jackson LJ); because the evidence of Mr Allen is not directly contradictory to such documents. Otherwise, evidence as to reasons may be provided in additional documents (see R (Mellor) v Secretary of State for Communities and Local Government (Case C-75/08); [2010] PTSR 880 at [59]; and Bateman at [21] per Moore-Bick LJ).
55. In my judgment, there was no arguable failure by the Council to engage with the issue required to be answered by the 1999 Regulations, namely whether the proposed development was likely to have significant effects on the environment; a question in the event answered in the negative.

EIA: Internal Inconsistency

56. Finally, Mr Harwood submitted that the third screening opinion contained fatal internal inconsistencies, as between paragraph 3 of the opinion itself and the screening checklist which accompanied it. Paragraph 3 stated:

"Finally, it is not considered that the proposal is unusually complex or would result in potentially hazardous environmental effects and is of not more than local importance, the magnitude of the potential impact not being considered to be of a scale which would affect a significant geographical area or population. Therefore, it is concluded that the proposal would not have any significant environmental effects."

57. Mr Harwood submitted that this provoked several inconsistencies:

(i) Paragraph 3 stated that "it is not considered that the proposal is unusually complex"; but the accompanying checklist set out the following questions and answer:

"A3. Will the effect be unusual in the area or particularly complex? Yes, LVIA would confirm impact."

Mr Harwood submitted that Circular 11/99 suggests that the terms "unusually complex" and "particularly complex" are used synonymously; there is thus an internal inconsistency here.

(ii) The opinion says that the project is not "of a scale which would affect a significant geographical area"; however, the screening checklist says:

"A2. Will features be out of scale with the existing very environment? Yes, turbines would be larger than existing natural features within landscape.

...

A4. Will the effect extend over a large area? LVIA would confirm extent of impact."

(iii) The opinion states that the project would not affect a "significant population"; but the checklist says:

"18. Is the project in a location where it is likely to be highly visible to many people? Yes, the site occupies a prominent location. LVIA would assess the visual impact.

...

A6. Will many people be affected? Potentially.

A7. Will many receptors or other types (fauna and flora, business, facilities) be affected? Potentially."

58. Mr Taylor submitted that, looked at fairly and as a whole, there were no material inconsistencies between the screening checklist and the opinion.

(i) With regard to the checklist answer A3, the affirmative was in respect of the development being unusual in the area, not particularly complex. Mr Allen confirms that that was what he intended by that answer (19 February 2014 Statement, paragraph 16).

(ii) With regard to checklist answer A2, Mr Taylor submitted that the fact that the turbines were larger than existing natural features was not logically inconsistent with the proposition that the project is not "of a scale which would not affect a significant geographical area"; and Mr Allen confirmed that he too saw, and intended, no inconsistency (19 February 2014 Statement, paragraph 17). Checklist answer A4 (and its reference to the LVIA) has been sufficiently covered by the course of my dealing with the previous sub-ground.

(iii) With regard to checklist answers 18, A6 and A7, Mr Taylor submitted, again, that the fact that the development is likely to be visible to many people is not logically inconsistent with the proposition that, in terms of significant effects on the environment for EIA purposes, the project would not affect a "significant population"; which is again supported by the evidence of Mr Allen as to how he considered matters (19 February 2014 Statement, paragraph 19). Mr Allen concluded (at paragraph 20):

"It was my view that whilst the proposed turbines had the potential to be visible and seen by many people, the likely magnitude of impact would not be significant. This is due in part to the site being located in the countryside, not in close proximity to any large population centres and also due to a large proportion of the views of the turbines being distance views within which the appearance of the structure is not likely to have a significant effect. I thus considered that the magnitude of the impact was likely to be low and that, while they may have adverse impact, the turbines would not have a significant adverse impact. The fact that something may be visible to a large population does not mean that it will necessarily by likely to cause a significant adverse impact upon landscape character or visual amenity."

Those were matters of planning judgment in relation to the screening opinion, and Mr Allen was entitled to draw the conclusions on them he in fact drew.

59. I consider Mr Taylor's submission compelling. In my view, there are no arguable material inconsistencies between the screening checklist and the opinion. Any ambiguity - and, again, I struggled to see much, if any, at all - has been clarified and resolved by Mr Allen's statement.
60. For those reasons, I consider Ground 2 also fails in each of its three aspects.

Disposal

61. I have given my views on the merits of each ground. In respect of the second and third sub-grounds of Ground 2, in my view, that they are discrete grounds and probably require permission to amend and to proceed. To avoid any confusion, although I might have found them to be unarguable, I grant any permission to amend and permission to proceed required. However, as to all grounds, I refuse the substantive application.
62. On that basis and in those terms, I refuse the claim, and direct that judgment be entered for the Council.

Note 1   The Directive is implemented in England by the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (SI 2011 No 1824); but, as regards the issues in this claim, the regulations in Wales and England are materially the same.     [Back]